The Journal of Negro History, Volume 6, 1921 | Page 8

power, whether expressly given or not, to secure and protect rights conferred or guaranteed by the Constitution."[23] Justice Harlan believed then that the doctrines should not be abandoned when the inquiry was not as to an implied power to protect the master's rights, but what Congress might, under powers expressly granted, do for the protection of freedom and the rights necessarily inhering in a state of freedom.
The Thirteenth Amendment, the court conceded, did more than prohibit slavery as an institution, resting upon distinctions of race, and upheld by positive law. The court admitted that it "established and decreed universal civil freedom throughout the United States." "But did the freedom thus established," inquired Justice Harlan, "involve more than exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the nation simply to destroy the institution and then remit the race, theretofore held in bondage, to the several States for such protection, in their civil rights, necessarily growing out of their freedom, as those States in their discretion might choose to provide? Were the States against whose protest the institution was destroyed to be left free, so far as national interference was concerned, to make or allow discriminations against that race, as such, in the enjoyment of those fundamental rights which by universal concession, inhere in a state of freedom?" Justice Harlan considered it indisputable that Congress in having power to abolish slavery could destroy the burdens and disabilities remaining as its badges and incidents which constitute its substance in visible form.
The court in its defense had taken as an illustration that the negative clause of the Fourteenth Amendment was not direct and primary, that although the States are prohibited from passing laws to impair the obligations of contracts this did not mean that Congress could legislate for the general enforcement of contracts throughout the States. Discomfitting his brethren on their own ground Harlan said: "A prohibition upon a State is not a power in Congress or in the national government. It is simply a denial of power to the State. The much talked of illustration of impairing the obligation of contracts, therefore, is not an example of power expressly conferred in contradistinction to that of this case and is not convincing for this would be a court matter, not a matter of Congress. The Fourteenth Amendment is the first case of conferring upon Congress affirmative power by legislation to enforce an express prohibition on the States. Judicial power was not specified but the power of Congress. The judicial power could have acted without such a clause. The Fourteenth Amendment is not merely a prohibition on State action. It made Negroes citizens of the United States and of the States. This is decidedly affirmative. This citizenship may be protected not only by the judicial branch of the government but by Congressional legislation of a primary or direct character. It is in the power of Congress to enforce the affirmative as well as the prohibitive provisions of this article. The acceptance of any doctrine to the contrary," continued Justice Harlan, "would lead to this anomalous result: that whereas prior to the amendments, Congress with the sanction of this court passed the most stringent laws--operating directly and primarily upon States and their officers and agents, as well as upon individuals--in vindication of slavery and the right of the master, it may not now, by legislation of a like primary and direct character, guard, protect, and secure the freedom established, and the most essential right of the citizenship granted, by the constitutional amendments."
It did not seem to Justice Harlan that the fact that, by the second clause of the first section of the Fourteenth Amendment, the States are expressly prohibited from making or enforcing laws abridging the rights and immunities of citizens of the United States, furnished any sufficient reason for upholding or maintaining that the amendment was intended to deny Congress the power, by general, primary, and direct legislation, of protecting citizens of the several States, being also citizens of the United States, against all discrimination, in respect of their rights as citizens, which is founded on "race, color, or previous condition of servitude." "Such an interpretation," thought he, "is plainly repugnant to its fifth section, conferring upon Congress power, by appropriate legislation, to enforce not merely the provisions containing prohibitions upon the States, but all of the provisions of the amendment, including the provisions, express and implied, in the first clause of the first section of the article granting citizenship." The prohibition of the State laws could have been negatived by judicial interpretation without the Fourteenth Amendment on the ground that they would have conflicted with the Constitution.
The court said the Fourteenth Amendment was not intended to enact a municipal